Can I Be Evicted For Subletting Without Permission?

by | Sep 6, 2012 | Roommates

Recently a friend of mine was handed an eviction notice from her landlord for subletting one of the rooms in her apartment while she was traveling. It shocked me that out of nowhere, the landlord could evict someone for something like this. She was already back at the house, and the issues was solved. It makes me a bit nervous about my own situation.

I live in a two bedroom flat in the Mission with a third room; a small “office.” Like many tenants in San Francisco, we have rented out the small, extra room to a friend. Having a third tenant was expressly verboten by the landlord when I signed the lease. However, this third person has lived with us for almost three years and there is a good chance the landlord already knows about it; he has made comments in passing such as “let your roommates know,” has probably seen the third person around, etc. I get along very well with my landlord and always pay my rent on time.

I have two questions:

1. A lawyer friend of mine mentioned something about “implied consent,” in terms of tenant/landlord relations, where if there is sufficient reason to believe the landlord is aware of a situation that is in violation of the lease, he or she is implicitly consenting to the violation. Is there any truth to this?

2. Can a landlord serve someone with an eviction notice without warning, or without a notice telling the tenant he or she must fix the situation? If landlords find out you’ve been subletting your room, or you’ve got an extra person in your flat, can they just evict you on the spot without telling you to stop subletting or ask the extra person to leave?

Issues with sub-tenants and people living in laundry rooms are issues that will increasingly apply to San Francisco tenants; this is an expensive place to live. I think we would all benefit from some extra information on the matter.

Having a third tenant was expressly verboten by the landlord when I signed the lease. What can I say? If your lease prohibits a third roommate and your landlord decides that the rent is too low and decides to evict you, it’s his prerogative. He can serve a three-day notice to cure or quit and if the roommate is not gone in three days, boom, the landlord can serve an unlawful detainer (eviction lawsuit). End of story.

Your lawyer friend is referring to the concept of waiver. Waiver is defined as an intentional relinquishment of a known right. In your case the landlord must know about your roommate’s presence and essentially consent it. Notice the term “intentional relinquishment.” How are you going to prove that in court? Certainly not by alluding to vague comments in which the landlord used roommates in the plural form.

The landlord never can evict a tenant “on the spot.” They must follow the rigid procedures defined in state and local law. The first step would be to serve a three-day notice to cure or quit as I described.

A couple of years ago, my business partner Solvejg and I represented a tenant whose predicament was similar to your friend’s. In that case the landlord had served a three-day notice to quit for illegal subletting. By the time we got the case, the landlord had served an unlawful detainer. Our client had to come back from the East Coast to defend the action.

We wrote a demurrer to the complaint alleging that the complaint was defective because the notice did not allow the tenant to “cure” the default as required in the San Francisco Rent Ordinance, but not state law. The notice did not allow the tenant an opportunity to remove the illegal subletter. Our client got lucky, but it cost her about five thousand dollars to keep the tenancy. She was lucky because she had the money to defend the case, and she made a good business decision because her rent was well below market rate.

Most tenants don’t have the kind of dough to pay lawyers to assert their rights and that’s the real point. Yes, tenants have rights and various defenses to unlawful detainer actions, but they often don’t have the resources to adequately assert those rights or to allege a viable defense. Landlords are well aware of this.

Clearly you, and most tenants, don’t understand the stress, pain and costs of defending a lawsuit, otherwise you would not knowingly violate your lease.

Why would you put your roommate through this? He didn’t do anything wrong, yet he could be either forced to move in three days or be named in a lawsuit and potentially screw up his credit.

San Francisco is expensive and many landlords these days want to cash in on the new Twitter/tech boom. One of the easiest ways to remove rent-controlled tenants is to sue them for illegal subletting. Often subletting from which the landlord turned a blind eye in the past, but that was the past and now those eyes are open.

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